Our corporate structuring and FDI practice is informed by a solid understanding of Indian government policies, including guidelines of the Department of Industrial Policy & Promotion in the Ministry of Commerce & Industry, the Reserve Bank of India,
and the ministries in charge of finance, telecommunications, petroleum, power, civil aviation, surface transport and other sectors which govern limits on foreign equity participation, repatriation of capital and dividends, payment of royalties, and other restrictions on investment. Indian government policies and rules are analysed in conjunction with company law, RBI regulations, contract law, securities laws, domestic tax laws and international tax treaties in order to determine the most appropriate vehicles for the desired investment, ranging from a liaison office, branch, joint venture, wholly owned subsidiary, consortium/SPV or acquisition of an existing company.
We negotiate joint venture agreements on behalf of multinational companies, conduct qualitative due diligence in order to adequately assess the risks attendant to investment and draft the requisite documentation including Shareholders Agreements, Consortia Agreements, License Agreements and Business Sale Agreements. We prepare the constitutive documents required for formation of either a joint venture company, wholly owned subsidiary, branch/liaison office and assist clients in complying with the formalities required by company law in order to incorporate a company in India. We further assist clients in obtaining the governmental approvals still required for investment in certain sectors.
We facilitate our clients’ business deals in diverse sectors by negotiating and preparing commercial contracts for client transactions ranging from the design, supply, installation, commissioning, operation and maintenance of sophisticated systems whether for development of power plants,
defence and aeronautics systems, intelligent transport systems, or the metro for the Government of India, cities and public sector companies. We counsel clients involved in the sale, distribution and marketing of products and services to both private clients and government agencies through supply agreements, distribution, franchise, dealer, and agency relationships.
The firm’s legal advice is informed by knowledge of Indian laws on contract, sale of goods, GST and customs duties and product specific regulations.
Over the years, the firm has developed expertise in M&A transactions and has assisted clients with the acquisition of shares, the assets or the businesses of target companies in India, including the purchase of government companies during the disinvestment initiatives of the Government of India. Our services begin with analysis of the tax implications of the transactions and whether any pre-merger notification is required under competition law. We assist clients with drafting the initial MOU, carrying out the qualitative due diligence, preparation of the Share PurchaseAgreement/Asset/Business Sale Agreement and other contractual documentation.
Expertise in the import-export regime in India not only in terms of import restrictions but also fiscal and other incentives for export oriented units is a prerequisite for multinational companies to make appropriate investment decisions.
The firm counsels clients on import related issues such as special import licenses and the open general license, restricted imports, import and distribution licenses and facilities available for zero duty imports of capital goods. Equally important are the myriad of export promotion schemes for export of goods, software, hardware and project exports whether in terms of special economic zones (SEZs), export oriented units or export processing zones, software technology parks or free trade zones as well as issues relating to deemed exports, sales in the domestic tariff area and customs bonding warehouses.
The firm assists clients in making the requisite applications for approval to the Department of Commerce, Director General of Foreign Trade or Commissioners of Export Processing Zones in order to set up export-oriented units as provided under the Export-Import Policy, the Handbook of Procedures and the notifications and orders of the Director General of Foreign Trade.
The firm’s advisory work in this area also includes antidumping and countervailing duty laws and procedures and analysis of the multilateral agreements on trade in goods and services under the aegis of the World Trade Organization.
The firm’s energy practice adopts an interdisciplinary approach to legal problem solving focusing on the areas of :
1) loan and securing documentation,
2) raw material & operational documentation (i.e. fuel supply & power purchase agreements)
3) regulatory compliance and due diligence. The legal expertise supporting work in these areas involves knowledge of principles of risk assessment and allocation, project finance experience, familiarity with the environmental and regulatory regimes and an understanding of the tax ramifications of potential decisions.
We represent foreign power developers in establishing independent power production companies in India with the equity collaboration of Indian partners and the State Electricity Boards with respect to thermal energy and renewable energy projects. In addition to power developers, the firm also represents Engineering, Procurement and Construction (EPC) contractors and international oil companies acting as fuel suppliers and managers.
Our work involves drafting and negotiation of Power Purchase Agreements, Wheeling Agreements and Fuel Supply and Management Agreements and EPC Contracts. We review Power Purchase Agreements and financial documentation with the view to assessing the viability of the project, risks in terms of construction, performance, environmental, financial, foreign exchange and fuel in an effort to move the project towards financial closure.
TELECOM & ECOMMERCE
The first wave of reform in the Indian telecom sector in the mid-1990s focused on privatisation of basic and value added services. The firm assisted clients engaged in providing high speed data transmission, email services, international calling cards and dealt with a variety of issues such as
structuring foreign investment through special purpose vehicles, compliance with export obligations, importation of telecom equipment, point to point connection, LANs and WANs.
The turn of the millenium accompanied the second wave of telecoms reforms focusing on internet services and the establishment of international gateways by private operators. The firm assisted telecom majors interested in providing internet services and building gateways in structuring their transactions in view of the foreign equity caps, holding company structures, rules on voice over the internet and connection to the internet backbone. We advised clients on the rules governing access to the internet backbone by undersea cable and by satellite, the requirements to establish monitoring facilities, last mile linkages, internet by cable transmission and broad band transmission.
Following the convergence of telecommunications, IT and entertainment industries, the firm also provides advice on regulation of cable networks, broadcasting, uplinking and other issues of importance to major television networks. We further assist clients with the regulatory aspects of obtaining licenses for international long distance (ILD) and advise mobile operators regarding bidding for licenses.
Since the creation of the Securities and Exchange Board of India (SEBI) as a statutory body in 1992, Indian securities law has emerged in a piecemeal fashion evolving from the numerous guidelines and clarifications issued by SEBI from time to time.
The firm’s expertise involves assimilation of this disparate legal regime so as to advise clients on the procedures, risks and benefits of taking a company public in India and the critical differences between U.S. and Indian securities laws.
Specifically, we counsel clients on the requirements for new and existing companies to list at par or at premium, reservation in issues, preferential allotments, disclosure requirements, advertising codes, underwriting requirements, bonus issues and issuance of convertible debentures.
We advise clients on the recent laws on hostile, negotiated and bailout takeovers, minimum price offers, insider trading, acquisition of publicly traded Government companies and the implications of the public offer requirements read with the foreign investment rules. Our analysis also examines regulation of merchant bankers, foreign institutional investors, mutual funds and venture capital funds.
The wave of acquisitions and restructuring of companies at the global level at the turn of the millennium led to much focus on the implications under the Takeover Code for change in control of an Indian listed company due to an amalgamation or takeover of holding companies abroad and the scope of exemptions under the Takeover Code.
Taxation is a critical consideration in determining the structure and nature of investment in India. We assist clients in achieving the most favourable tax position by analysis of a number of Avoidance of Double Taxation Treaties and selecting
the most beneficial in terms of taxation of dividends, capital gains, royalties and technical fees. The tax treaties are read in conjunction with the Indian Income Tax Act, 1961 and the advance rulings for non-residents on tax matters rendered by the Authority for Advance Rulings (AAR). The advice rendered addresses issues such as the interpretation of beneficial ownership and permanent establishment which, in recent years, have had important tax implications particularly with respect to the structuring of investment through Mauritius and other tax havens.
Many multinational clients have been the target of income tax raids and investigations. We advise our clients on the legality of the conduct of such investigations and the search and seizure provisions in the Income Tax Rules and the Code of Criminal Procedure. We assist clients in resolving these disputes through the Mutual Agreement Procedure of the relevant Avoidance of Double Taxation Treaty.
The firm’s tax practice includes advice on indirect taxation such as GST, customs duties as well as the tax ramifications of voluntary retirement schemes with a view to maximizing the tax benefits of a transaction. We also create public and private trusts, obtain approval of tax exempt status and entitlement to s. 80G deductions for charitable foundations from the Commissioner of Income Tax .
BANKING AND FINANCE
The firm’s clients include several major international banks which have opened branches in India. We assist international banks by drafting and negotiating Facility Agreements for External Commercial Borrowings (ECBs) as well as security documentation, including guarantees, pledges,
hypothecation deeds, charges, promissory notes, conducting due diligence on potential borrowers, reviewing documentation submitted by borrowers, obtaining the Reserve Bank of India and Ministry of Finance Approvals and opining on the enforceability of the Facility Agreements and securing documentation. We assist clients with perfecting the security interests given to lenders through registration of charges with the Registrar of Companies.
The firm advises clients on the Reserve Bank of India (RBI) regulations governing Non-Banking Finance Companies (NBFCs), including foreign investment in existing NBFCs and setting up an NBFC through a joint venture with an Indian partner. We further advise on the RBI regulations on bank finance to NBFCs, the requirements relating to acceptance of public deposits, factoring, and Know Your Customer rules applicable to NBFCs.
We counsel clients on the Prevention of Money Laundering Act, 2002 and the RBI rules governing anti-money laundering (AML) regulations applicable to foreign investors, banks, NBFCs and financial intermediaries. Our firm contributes the India chapter to the International Guide to Money Laundering published by Bloomsbury Publishers in London.
The protection of intellectual property rights assumes particular relevance in the Indian context where patent laws on pharmaceutical products have for decades diverged from international practice, software and video piracy is rampant and registration of patents,
trademarks and copyrights often takes longer than in other countries. The firm’s work in this area has involved handling and settling cases on behalf of famous multinational companies whose business names, logos and trading style are copied by local companies attempting to profit from the goodwill enjoyed by the well known foreign company. Due to the lengthy nature of court adjudication, the firm’s practice emphasizes settling cases involving trademark infringement or unauthorised use of a business name out of court.
We conduct patent and trademark searches and file applications for registration of patents, trademarks and copyrights in India. We represent clients in any oppositions filed to these applications until registration is obtained. If clients have not registered or used trademarks in India, we advise clients on the legal recourse available under common law actions for passing off, fraud or business tort, including the theories relating to trans-border reputation of famous marks. Our practice encompasses advice on matters relating to unfair competition such as false advertising and product labelling.
LABOUR & EMPLOYMENT
Labour laws in India are labyrinthine in nature and, due to the socialist heritage, elaborately address most aspects of the employer/employee relationship. The firm’s management practice typically involves explaining the implications of
these laws to multinational companies in terms of everyday issues such as hire and fire, hours of work, leave and holidays. We advise clients with respect to minimum wage requirements, equal remuneration requirements and statutory bonus payments as well as disability compensation in the form of workmens compensations and employee state insurance and retirement benefits such as the provident fund and gratuity payments.
We also assist clients in labour intensive industries such as civil construction to determine which labour licenses must be obtained by their contractors and sub-contractors and ascertaining whether clients are in compliance with laws relating to contract labour, inter-state migrant workmen, child labour, building and construction labour rules.
Drawing on the American legal background of its attorneys, the advice provided by the firm is specifically attuned to the aspects of Indian labour law which are strikingly different from some western countries particularly with respect to critical issues such as hire and fire policy. We also prepare employment contracts and confidentiality agreements and advise clients on the rapidly evolving jurisprudence on sexual harassment and other issues affecting the workplace.
Although real estate law in India dates back to early common law origins, it has evolved into an enormously complex form due to the myriad of socialist inspired pieces of legislation ranging from rent control and landlord/tenant laws which effectively preclude eviction to urban land ceilings.
Other laws have evolved which are designed to curtail widespread tax avoidance, laundering of black money and “benami” or fictive transactions such as the income tax department’s right to make a pre-emptive purchase of under-valued property.
The firm’s real estate practice involves first, advising foreign companies on the legal regime governing foreign investment in immovable property in India. In particular, we advise clients on the notable differences between acquisition of land in India and in the U.S. in terms, for example, of title searches and identifying encumbrances.
We further advise clients on transfer of property including legal and equitable mortgages, transfer of agricultural land and eminent domain laws interpreted in the context of the constitutional provisions on the right to property. This practice area also grapples with issues such as zoning regulations, easements, licenses. We review Lease Agreements and Deeds, Sale Agreements and Deeds entered into by foreign companies and their expatriate employees and opine as to the adequacy of the same as well as compliance with stamp duty and registration requirements.
As in the case of labour law and real property, a myriad of laws must be read together in order to gain an understanding of the Indian legal regime governing the environment which evolved primarily after the Bhopal tragedy. The firm’s practice in this area involves
compliance work beginning with the Environmental Protection Act, 1986 and the regulations promulgated thereunder. We examine the effluent and emissions standards prescribed under the Water Pollution Act, 1974, the Air Pollution Act, 1981, regulations protecting the coastal zones, disposal of hazardous wastes, handling of hazardous substances, reporting requirements under the Factories Act 1948, insurance requirements under the Public Liability Insurance Act, 1991 and conduct environmental due diligence on proposed acquisition targets. We also consider the implications of laws protecting forests and wildlife on industrial projects. In addition to the statutory legal regime, we also examine the evolution of common law protection of the environment through legal theories of private and public nuisance, tort law and absolute liability for hazardous activities.
In addition to compliance work, we also prepare and review applications to the Central and various State Pollution Control Boards for approvals to set up industrial projects in particular areas. We assist clients in obtaining environmental assessment clearances from the Ministry of Environment and Forests and have successfully defended multinationals against pollution claims by environmentalists.
RE-ORGANIZATION & BANKRUPTCY
The firm advises foreign companies on possible strategies for exiting from India by winding up a company whether through a voluntary winding up or by striking off of the name of the company from the Register of Companies. We counsel clients on the time
frame, costs and procedures involved in winding up of a company from the declaration of solvency, winding up resolution of shareholders, public notice, appointment, duties and remuneration of the liquidator, possession of assets and collection of debt, distribution of property and finally dissolution of the company. An integral part of this practice area is advice regarding the rules and regulations governing sale of shares by foreign investors in both listed and unlisted companies and repatriation of capital. Other important issues include the priorities granted by law to secured creditors and employees in the event of winding up and stays on transfers deemed by law to be transfers to avoid payment to creditors once the winding up has commenced.
The firm’s work in this area also involves representation of debtors and creditors in matters involving re-organization of insolvent companies. An important part of this practice is filing petitions for winding up of companies which have failed to pay amounts due under contractual obligations.
The fundamental philosophy of the firm is to keep clients out of court particularly in view of the arduous delays involved in civil litigation in India. Accordingly, we avoid filing suit to the greatest extent possible and attempt to settle grievances with other parties. However, when litigation
becomes unavoidable we aggressively represent clients before the Delhi High Court, the Bombay High Court, the Supreme Court of India and the National Consumer Commission. We have experience handling recovery suits, products liability cases, commercial disputes with dealers/distributors, environmental litigation, winding up petitions, civil and criminal defamation cases, cases against government authorities under the writ jurisdiction, labour matters and various commercial cases.
We also draft arbitration agreements and represent clients in statutory and contractual arbitration proceedings according to the Indian Arbitration and Conciliation Act, 1996 and the ICC Rules. We advise clients on the appropriate venue of arbitration, the choice of procedural and substantive law and the differences between domestic arbitration and international commercial arbitration under Indian law. We counsel clients on the mechanisms available under Indian law read with international treaty obligations for seeking a stay of a reference to arbitration, challenging the maintainability of an arbitration and challenging enforcement of a foreign arbitral award.